TERRITORY

The Concept of Territory in

International Law

Territory

Sovereignty
State
 What is State Territory??
• State territory has been defined as “portion of
globe which is subjected to the sovereignty of a
State.”

• It is the space within which the State exercises its

supreme and normally exclusive
authority.
Why study the concept of Territory
in International Law??
•Development of legal rules
protecting its inviolability
1.)
•The principle for respect of territorial
integrity of states and prohibiting
interference in the internal affairs of
2.) other states.
Composition of a State Territory

Air Space
above land
& water
territory

Territorial Land Mass

Waters
 Territorial Sovereignty
sovereignty in relation to a portion
of the surface of the globe is the
legal condition necessary for the
inclusion of such portion in the
territory of any particular state.
Island of Palmas case
 ‘Title’
Evidence
which may
establish the
existence of a
right
Notion
of
Actual
“Title”
source of
that right
 Aspect of territory apart from
sovereignty
Territory that has no sovereign

Terra Nullius Res Communis

 New States and Title to Territory
1.) Factual Requirements of Statehood
2.) Recognition
3.) Methods by which a new entity may gain its
independence as a new state:
(i) by constitutional means
(ii) by non-constitutional means
 Modes of Acquisition of Territory
1.) Occupation (of terra nullius)
2.) Prescription
3.) Cession
4.) Accretion
5.) Subjugation (or conquest)

Original modes Derivative Modes

Boundary Treaties &
Boundary Awards
 Boundary Treaties
• Boundary treaties, whereby either additional
territory is acquired or lost or uncertain boundaries
are clarified by agreement between the states
concerned, constitute a root of title in themselves.

• Special kind of treaty in that they establish an

objective territorial regime valid erga omnes.
 Boundary Awards

Constitute roots or sources

of legal title to territory

A decision by the ICJ or a

tribunal allocating title or
determining the boundary
line between states will be
confirmation of the title and
binding on the parties
 1.) Occupation
• Occupation is the act of appropriation by a State
by which it intentionally acquires sovereignty over
such territory as it is at the time not under the
sovereignty of another state.

• It is thereby an original mode of occupation in that

the sovereignty is not derived from another state.
 Effective Occupation

Administrati Effective
Possession Occupation
on

Administration must be established within a reasonable time after taking

the territory into possession
Eastern Greenland Case (1933)
 The PCIJ held

Claim of •Here, it is based on

continuous display of
Sovereignty authority.
Display of •(i) The intention and will to act as
sovereign
authority involves •(ii) Actual exercise or display of such
two elements authority

•Eastern Greenland was

Decision under a sovereignty of
Denmark.
 2.) Prescription
• If a state exercises control and establishes
occupation over a particular territory for a long
time and thus exercises de facto sovereignty over it,
then the territory concerned becomes a part of that
State.
• Peaceable exercise of de facto sovereignty over a
very long period of time.
Island of Palmas Arbitration
(Netherlands v. US)
 The Main Question
• If a dispute arises as to the
sovereignty over a portion of
territory, then what is the validity of
the claim of the parties if they are
clashing… or what is the criteria for
establishing superior claim?
 Contention of the US

Treaty of •The title is that of cession

Paris based on Treaty of Paris.

•Discovery does create a title.

Discovery •U.S.A is successor of Spain in the first
place on discovery.

• Title arising out of contiguity and the

Contiguity territory forming terra firma (nearest
continent or island of considerable size).
 Contention of the Netherlands
• These native States were from 1677
Historic onwards connected with the East India
Company, and thereby with the
Title Netherlands by contracts of suzerainty.

• Acts characteristic of State authority

Display of exercised in regard to Palmas have been
established as occurring at different epochs
Sovereignty between 1700-1898 and 1898-1906.

Peaceful • It has been a peaceful, open and

Display un-contested display of authority.
 Hence…
• The Netherlands title of
sovereignty, acquired by continuous
and peaceful display of State
authority during a long period of
time probably going back beyond
the year 1700, therefore holds
good.
So… thereby, some other aspects that
emerge

Title by •Simple physical discovery or

mere visual apprehension is
Discovery not sufficient.

•Not a basis of title per se but may

Title by give rise to a rebuttable
presumption.
Contiguity •It originated in the concept of
“natural unity”.
France v. Mexico (1931)
Clipperton Island Case
 History of claims- France

A journal The In 1858, the

Nov.17, 1858 Polynesian
France under
published in
island was a
Napoleon declared
Dec., the French territorium
sovereignty nullius
Declaration

On the End of 1897, 3

appearance of the Until 1897, no
French vessel,
persons found positive act of
collecting sovereignty on the
raised the part of France
American Flag guano
 History of claims- Mexico
Name Clipperton:
Discovered by the
English
Spanish Navy &
adventurer, took
belonged to Spain
refuge here

The occupation of From 1836, it

France was never came to Mexico
notified to them as a successor
or any other state state to Spain
What is occupation? & Why does it
belong to France here??
• But, if a territory, by virtue
of the fact, that it was
Actual
completed uninhabited, is,
Possession from the first moment when
the occupying state makes its
appearance there, at the
Occupation absolute and undisputed
disposition of that state, from
that moment the taking of
Animus possession must be
Occpandi considered as accomplished
& the occupation is thereby
complete.
 Therefore, it was stated
• The Clipperton Island was legitimately acquired by France on
Nov17, 1858.

• There is no reason to suppose that France has subsequently lost

her right, since she never had the animus of abandoning the
island.

• The fact that she has not exercised her authority there in a
positive manner does not imply the forfeiture of an acquisition
already definitely perfected.
Prescription requires fulfillment of
certain conditions
Peaceful & Possession
uninterrupted should be in
possession public

No acceptance Possession
of sovereignty of should for a
any other states
over the said definite
territory Title by period
Prescription
Common features of Occupation &
Prescription
•Both connect the title on the basis of a titre de
1.) souverain. (Authority of state)

•Both require an uninterrupted and public display of

2.) possession for a ‘reasonable’ period.

•Acquiescence in the case of prescription is essential,

3.) whereas in the case of occupation is evidential.
Distinction between Occupation and
Prescription
OCCUPATION PRESCRIPTION

Will to De facto
exercise sovereignt
sovereignt y for long
y period

OCCUPATION PRESCRIPTION

Must
Actual be
authority open &
public
Features distinguishing Occupation &
Prescription
OCCUPATION PRESCRIPTION
Title acquired when legality of the
Terra Nullius acquisition cannot be
demonstrated

Original & Proper Title

Legitimation of a doubtful
title with the passage of time

Often preceded by Acquiescence by the former

discovery sovereign
 3.) Accretion
• The geographical process by which new land is formed and
becomes attached to existing land.
• When there is a change in the course of a river forming a
boundary then two consequences may follow: -

Violent Shift (avulsion) Slight shift

Boundary may be shifted

Boundary stays at the same point
along the original river bed
U.S. v. Mexico (1911)
Chamizal Arbitration
 Accretion vis-à-vis The Chamizal
Tract
• River Rio Grande was made
Treaty of 1848 the boundary between Mexico
& the U.S.

The Chamizal •By 1911, the River had changed its

course leaving 600 acres of land
Tract between the old and new beds.

International • The tract resulted due to accretion

Boundary belonged to the U.S., but the part
Commission resulted from flood belonged to Mexico.
Prescription vis-à-vis El Chamizal
The United States has not been able
to establish their title by prescription
as the foundational elements of
prescription like ‘undisturbed,
uninterrupted and unchallenged’
could not be met with.
 4.) Cession
• This involves a peaceful transfer of territory from
one sovereign to another (with the intention that
sovereignty should pass) and has often taken place
within the framework of a peace treaty following a
war.
The effect of cession
 Replacing one sovereign from another
 The acquiring state cannot have more rights than its
predecessor
Modes in which cession occur
Purchase
of
territories
Exchange Pure gift
of of
territories territories

Cession
 5.) Conquest & the use of force
• Established principle in Municipal Law: “An
illegal act cannot give birth to a right in law.”

• In International rule this rule is modified: The

reaction to a successful (even if illegal) violation
is accepted by virtue of recognition.
What is conquest?? When can it be a
basis of title??
•The act of defeating an
Conquest opponent and occupying all or
part of its territory.

Rights of the •Some rights under international

law, like the rights of belligerent
Victor occupation.

Rights not •No automatic title on conquest.

available with the •Legal title vests with the ousted
victor sovereign.
 Conquest & Title
•Formal Annexation of territory
The Classical following upon an act of conquest
International would operate to pass title.
Law •But transfer of title before the
conclusion of war was ineffective.

The •Acquisition of territory by force

Contemporary alone is not valid in international
International law today due to the operation of
Law Art.2(4) of the UN Charter.
 Security Council Resolution 662 (1990)

• The Council decided that the declared Iraqi

annexation of Kuwait ‘under any form’ and
whatever pretext has no legal validity and is
considered null and void.
 Territorial Sovereignty- The
attendant concepts

• Inter-temporal Law
• Sovereign Activities: (effectivites)
• The role of subsequent conduct: Recognition,
Acquiescence and Estoppel
• The doctrine of uti possidetis
 Inter-temporal law
• Title must be valid in accordance with
The Concept the law in force at the time at which it is
claimed to have been established.

•The validity of the title must also

An extension be constantly updated.

The dynamic • It reflects the development of

international morality vis-à-vis a change in
character the previous rule of international law.
 Therefore…
• ….while the creation of particular rights was dependent
upon the international law of the time, the continued
existence of such rights depended upon their according
with the evolving conditions of a developing legal
system…although this stringent test would not be
utilized in the case of territories with an ‘established
order of things’.

Island of Palmas case

 Sovereign Activities (effectivites)

• ‘the actual continuous and peaceful

display of state functions is in case
of dispute the sound and natural
criterion of territorial sovereignty.’
 Sovereign Activities (effectivites)
• Control even though needing to be effective,
does not necessarily have to amount to
possession and settlement of all the territory
claimed.

• Performance of sovereign activities depends on

the nature of territory involved, the amount of
opposition & international reaction.
 Will of the State to acquire
Sovereignty
Other
geographical
factors may be
Administrative relevant Discontinuity
acts may still
maintain the
performed right for
over the uninhabited
centuries regions
Performed
with an
intention to
assert claim
of territory
Some other not-so relevant criteria

Geographical Proximity or contiguity:

Sovereignty exercised over such area will raise
a presumption of title but nothing more.
 Significance of Effectivites vis-à-vis
Title

Valid Legal Title & Effectivites Title is not

contrary
Title clear
• Effectivites • Title (if • Effectivites
plays a valid) plays an
confirmator prevails important
role in
y role over showing how
effectivites the title is
interpreted in
practice.
 The role of subsequent
conduct: Recognition,
Acquiescence and Estoppel
 Subsequent Conduct
•A method of determining the true interpretation
1stly of the relevant boundary instrument.

•A method of resolving an uncertain situation, for

2ndly determining the uti possidetis line.

•A method of modifying such an instrument or

3rdly pre-existing arrangement.
 The nature of such acts

•A positive act affirming

Recognition the existence of a specific
factual state of affairs.

•Arises in a circumstance where a

protest is called for and does not
Acquiescence happen, thus, the state making no
objection is understood to have
accepted the new situation.
 The nature of such acts

•A party which consented

to a particular statement
upon which another party
relies in subsequent
Estoppel activity to its detriment or
the other’s benefit cannot
thereupon change its
position
 Importance of Estoppel
• A legal technique whereby states deemed to have
consented to a state of affairs cannot afterwards
alter their position.
 It cannot found a title by itself.
 It is of evidential effect.
• Temple of Preah Vihear- most important case on
estoppel.
 Importance of Recognition &
Acquiescence
• In case of acquisition of control contrary to the
will of the former sovereign.

• Title of prescription can arise if there is no

protest by the former sovereign. (acquiescence)

• In the long run, recognition can validate a

defective title.
 Importance of Recognition &
Acquiescence
• These are also relevant where the prescriptive title
is based on what is called immemorial possession,
that is the origin of the particular situation is
shrouded in doubt.

• It becomes lawful in the general acquiescence of

the international community or particular
recognition by another state.
Definitive title is perfected

Effective
Possession
& Control

Title
becomes
definitive
Acquiescence
The doctrine of uti possidetis

“as you possess”

The parent value: Territorial Integrity
Core Principle of International Law

Need for stability and finality in boundary questions

Reflects the Principle of TERRITORIAL

INTEGRITY

Series of consequential rules prohibiting

interference within domestic jurisdiction of states
 The normative arrangement
Appear as competing norms The Principle laid down
• ‘international law
expects that the
right to self
Territorial determination will
be exercised within
Integrity Self
Determination
the framework of
existing sovereign
states and
consistently with
the maintenance of
The parent value: Territorial Integrity

Effectivites

Territorial
Integrity

Self
Uti determina
Possidetis tion
 The Doctrine
• The essence of the principle lies in its
primary aim of securing respect for the
territorial boundaries at the moment
when independence is achieved. Such
territorial boundaries might be no more
than delimitations between different
administrative divisions or colonies all
subject to have the same sovereign. In
that case, the application of the
principle of uti possidetis resulted in
 Burkina Faso v. Republic of Mali

• settlement of the dispute should be based upon respect

for the principle of the ‘intangibility of frontiers inherited
from colonization’.

• The principle has developed into a general concept of

customary international law and was unaffected by the
emergence of the right of self determination.
Application beyond Colonial Context

Yugoslavia •Whatever the circumstances the right

Arbitration of self determination must not involve
Commission- changes to existing frontiers at the
time of independence
Opinion No. 2

Yugoslavia • Except where otherwise agreed,

the former boundaries became
Arb. Comm. frontiers protected by
Opinion No. 3 international law
 Beyond Uti Possidetis

1.) Presence of a Relevant Treaty

2.) Notion of Effectivites**

**defined as the conduct of the administrative

authorities as proof of the effective exercise of
territorial jurisdiction in the region during the
colonial period.
 Relevant Applicable Treaty
• Once defined in a treaty, an international
frontier achieves permanence so that even if
the treaty itself ceases to be in force, the
continuance of the boundary would be
unaffected and it would change only with the
consent of the states directly affected.
 Effectivites
1.) Act concerned corresponded to the
title comprised in uti possidetis juris,
then the effectivites simply ‘confirmed’
the exercise of the right derived from
the title.
2.) Where the territory subject to the
dispute was effectively administered by
a state other than the one possessing
legal title, preference would be given to
the holder of the title.
 Land, Island & Maritime Frontier
Dispute case

….to establish the The principle of

If Effectivites position of the uti possidetis
relevant
are insufficient.. administrative could not
device operate
 If anyhow, uti possidetis line
could not be determined,
recourse to EQUITY might be
necessary
- COMMON HERITAGE OF
MANKIND -
 The Concept
• A principle which holds that defined
territorial areas and elements of
humanity’s common heritage (cultural
and natural) should be held in trust for
future generations and be protected
from exploitation by individual nation-
states or corporations.
 Some common characteristics between
Common Heritage Regime and Res Commune
1.) The areas in question are incapable of national
appropriation.
2.) Sovereignty is not an applicable principle and the
areas in question would not be ‘owned’.
3.) No jurisdictional rights exist outside the
framework of the appropriate common heritage
regime institutional arrangements.
Sovereignty is not an applicable principle
Res Commune
Permits freedom
of access,
exploration and
exploitation

Common Heritage
Regulate exploration &
exploitation, establish
management mechanism,
employ criterion of equity
in distributing benefits of
such activity
 Some Conventions under this principle

• Relating to Deep-sea Sea Bed & Ocean Floor

 GA Declaration of Principles Governing the Sea-Bed &
Ocean Floor, 1970
 Convention on the Law of the Sea, 1982
• Relating to the Moon
 Art.IX of the Moon Treaty, 1979

• Outer Space
 Outer Space Treaty, 1967
The Polar Regions
The arctic region
The Antarctica
 The Uniqueness of Antarctica
The Antarctic • The Antarctic Treaty & related
agreements, collectively known as
Treaty the Antarctic Treaty System (ATS),
regulate international relations w.r.t.
System Antarctica.

• The treaty is seen as a diplomatic

Scientific expression of the operational and
scientific cooperation that had been
Cooperation achieved “on the ice”.

No • There is no explicit recognition

of any sovereignty over the
Exclusivity Antarctica.
The Antarctic Treaty, 1959
Freedom of
Scientific
Investigations

Right of free Prohibits

access and Nuclear
information Explosions

Prohibits
No claim
Disposal of
of
Radioactive
sovereignty
Wastes